Confirm Justice Garland

March 28, 2016

As all literate Americans know, Justice Antonin Scalia died on February 13, 2016, creating a Supreme Court vacancy with a little more than 11 months remaining in President Obama’s term. Within hours of Justice Scalia’s death, Senate Majority Leader Mitch McConnell announced that the Republican-controlled Senate would not consider any nominee to replace Scalia that President Obama might select.

Initially, the Republican rationale was a claim that an 80-year tradition bars Senate confirmation of Supreme Court nominees in the last year of a presidential term. The problem with that claim was that it was false: in the 80-year period in question, the Senate has confirmed three Supreme Court nominees during election years.

Desperately seeking substantiation, Republicans tried out the idea that then-Senator Joe Biden had created a “rule” in 1992 against filling Supreme Court vacancies during election years. That wasn’t true either. Senator Biden said only that in the event of an election-year vacancy and nomination, the Senate should “seriously consider” deferring confirmation hearings until after the election.

Today, Senate Judiciary Committee Chair Orrin Hatch announced a new rationale for the Senate’s obstinate refusal even to conduct hearings on President Obama’s nominee to fill Justice Scalia’s seat: “Throughout its history, the Senate has never confirmed a nominee to fill a Supreme Court vacancy that occurred this late in a term-limited president’s time in office.”

What an impressive statement that seems! President Obama is asking the Senate to do something it has never done in its history!

I have called the Republican position on Justice Scalia’s seat “a mighty piece of sophistry.” But Senator Hatch’s version reaches exquisite new levels of sophistry.

Senator Hatch refers majestically to the entire history of the United States Senate, stretching back to March 4, 1789 – more than 227 years! But his reference to Senate precedent applies only to “term-limited presidents.” Presidential term limits were adopted by the 22nd Amendment to the U.S. Constitution, which became effective upon the inauguration of President Dwight Eisenhower – on January 23, 1953.

In other words, Senator Hatch’s sweeping invocation invocation of the history of the United States Senate’s dealings with Supreme Court nominees made by term-limited presidents goes back only 63 years – less than one-third of Senate history.

In all of American history, of our 44 presidents, only five have been term-limited: Presidents Eisenhower, Reagan, Clinton, Bush (43) and Obama.

Before President Obama, none of the other four term-limited presidents had to deal with a Supreme Court vacancy occurring during his last year in office. So Senator Hatch’s historical claim comes down to this: during the five presidencies that have been subject to term limits under the 22nd Amendment, none before President Obama have had a Supreme Court vacancy as late in the second term as Justice Scalia’s death.

Before President Obama, the term-limited president with the latest-occurring Supreme Court vacancy was President Reagan – Justice Lewis Powell, Jr., retired on June 26, 1987, which was 19 months before President Reagan was term-limited out of office. President Reagan nominated Robert Bork to Justice Powell’s seat. No one objected that Ronald Reagan was term limited, or that the people should “weigh in”; the Democratic-controlled Senate, with Joe Biden chairing the Judiciary Committee, held full hearings. On October 23, 1987, the Senate rejected the nomination.

On October 29, 1987, President Reagan tried again: he nominated Douglas Ginsburg to the Powell vacancy. No one objected that President Reagan was term-limited; no one claimed that never before had a term-limited president made a Supreme Court nomination so late in his second term.

When Ginsburg’s marijuana use became public, he withdrew his name from consideration. On November 11, 1987, President Reagan tried one more time – he nominated Anthony Kennedy. The Senate convened hearings on December 14, 1987, and Kennedy was confirmed by the Senate on February 3, 1988. There was no protest that a lame duck president should not fill a Supreme Court vacancy. Confirmation was unanimous.

Republicans need to cut it out. There is no tradition of leaving Supreme Court seats vacant, not in presidential years, not for term-limited presidents, not for any reason at all. The Republicans’ refusal to consider President Obama’s nomination of Merrick Garland to fill Justice Scalia’s seat is completely new. It is partisan, it is unprincipled, and it is ugly.